April 2011 Archives

April 27, 2011

Dolphin's Player Victim of Domestic Violence

Brandon Marshall has again been thrust into the criminal justice system, but this time as the victim of domestic violence. The dispute occurred last Friday night between Marshall and is wife. The dispute resulted in Marshall's wife allegedly stabbing him in the abdomen causing him to spend the night in the trauma unit in Broward General Hospital. His wife, Michi, was arrested and booked on the charge of aggravated assault with a deadly weapon. The defendant will either retain a Broward County or Miami criminal defense attorney to represent her in circuit court. Aggravated assault is a third degree felony punishable up to five years in prison. The defendant will most likely not face any period of incarceration as she has no prior criminal history.

Domestic violence cases are handled differently in Miami-Dade County from other types of criminal charges. In most other criminal cases, anyone arrested will receive a standard bond when booked into the jail and can immediately bond out of custody. Capital crimes and offenses that are punishable by life in prison do not afford a defendant a bond at the time of booking. Domestic violence charges have standard bonds, but defendants are required to appear before a judge before they can be released from jail. The bonds vary depending on the offense charged. Misdemeanor offenses such as simple battery generally carry a $1,500 bond, while felony offenses such as aggravated assault and aggravated battery have standard bond of $5,000.

Defendants in domestic violence cases are required to see a judge before their release for a couple of reasons. First, judges have any obligation to issue a stay away order to defendants charged in domestic violence cases. Stay away orders preclude defendants from having contact from victims. The order forbids defendants from contacting victims in person, telephonically, through e-mail or text messages. The order further forbids defendants from making third party contact with victims. Experienced criminal defense attorneys can appear before the judge presiding over the case and seek a modification of or discharge of the stay away order. The judge will require the victim to appear in court and provide sworn testimony under oath before a modification or discharge will be ordered. Secondly, preventing the early release provides for a short cooling off period.

Domestic violence charges are serious, not necessarily in terms of the punishment, but convictions or even withholds of adjudication will prevent a sealing or expungement of the record at a future date. First time offenders are generally offered pre-trial intervention which will which result in a nolle pros or dismissal if the defendant complies with all of the conditions set forth by the state attorney's office. Then and only after the case is dismissed can a defendant seek to seal or expunge his or her record. The victim must agree for any type of program to be offered to the defendant. If the victim does not concede to the program, probation will probably be offered. In either event, the defendant will be required to complete a rigorous 30 week batterer intervention program ("BIP"). These results are only options to a defendant charged with domestic violence. All defendants have a right to trial and can seek an acquittal from a jury compiled from residents of the county where the case is tried.

Miami Dolphin's Brandon Marshall Released from Hospital after Stabbing, Miami Herald.com, April 24, 2011.

April 21, 2011

Pre-Trial Release Programs Benefit Defendants and Taxpayers

Currently, efforts are underway by a special interest group to cut or end pre-trial release programs. Pre-trial release programs were created to benefit defendants charged with non-violent crimes and taxpayers as well. An experienced Miami criminal defense attorney will always attempt to secure a client's release through a pre-trial release program rather than posting a bond as it is much cheaper. In state court, all crimes, except for life felonies, have a standard bond. The bond is set as soon as a defendant is booked into the Miami-Dade County Jail. A defendant can post a bond one of two ways. A defendant can put up the cash for the entire amount of the bond to secure his or her release. At the conclusion of the case, the money put up for the bond will be returned to the person who posted it. If a defendant does not have the financial ability to post a cash bond, a bondsman can be hired to secure the release.

A bondsman will post a bond if a defendant pays 10% of the amount of the bond. This amount is referred to as the premium. For example, if a defendant is arrested for marijuana trafficking and the bond is set at $50,000, a $5,000 premium paid to the bondsman will secure one's release. Bondsmen may require a larger premium if a defendant lives outside of the county, state or country. If a defendant is not able to avail himself or herself or a pre-trial release program and cannot afford the premium being sought by the bondsmen, then a lawyer can appear at bond hearing and ask for a reduction or file a motion for bond reduction and have the matter heard before the circuit court judge presiding over the case. A compelling argument will often cause a judge to reduce the bond allowing the defendant or his or her family to come up with the premium for the bondsman.

Even if a defendant can afford to post a cash bond, or has the money to give the 10% premium to a bondsman, certain offenses have a Nebbia requirement. Offenses that almost always have Nebbia requirements include drug trafficking, mortgage fraud, insurance fraud, etc. The purpose of the Nebbia is to prove to the prosecutor and the judge that the money and property being used to secure the bond does not come from the criminal enterprise for which the defendant is charged. The defendant will have to prove that the money used to post the bond comes from a legitimate source. Any property put up as collateral for the bond will also have to be traced back to demonstrate that it was obtained though legitimate means.

While pre-trial release is less costly to the defendant, it is more onerous because it requires monitored supervision. Defendants in a pre-trial release program have reporting requirements and are even sometimes required to maintain a schedule for employment and other activities. The restrictions placed on a defendant are within the sole discretion of the judge. The taxpayers truly benefit from these programs. Pre-tria release costs the taxpayers $5 dollars a day, while it costs the taxpayer $75 dollars a day to house an inmate. Some are concerned about the safety of the community when it comes to these types of programs. Only defendants charged with non-violent crimes such as theft, simple drug possession or felony traffic crimes will be give pre-trial release. Defendants charged with aggravated assault, sexual battery, or robbery will never be granted pre-trial release which should ease the minds of the community.

Preserve Pre-Trial Programs, Tampa Bay Online.com, April 21, 2011.

April 15, 2011

Golden Beach Police Officers Arrested for Theft and Fraud

The Golden Beach Police department can now boast of three recent arrests of police officers accused of allegedly skimming money from the town and the taxpayers who reside there. The officers are currently charged with grand theft and organized scheme to defraud. Reports indicate that the officers failed to pay the town a portion of income earned by working off-duty jobs. The town requires that officers report all off-duty hours worked and further requires that they pay a $5 fee for every hour worked. The fee is supposed to compensate the town for police car maintenance, uniforms, gasoline and insurance costs. The defendants will all retain private Miami criminal defense attorneys to defend the charges.

The amount of the fraud is minimal, with one defendants allegedly bilking the town out of $1,500 and the other about $2,100. While most first time offenders would normally be offered the pre-trial intervention (PTI) program, officers are generally held to a higher standard and will not be offered an opportunity to resolve their cases in that manner. The pre-trial intervention program is usually offered to all first time defendants that are charged with non-serious, non-violent felony offenses. The defendants are required to complete certain conditions in exchange for a nolle pros or dismissal from the state attorney's office. The conditions that are usually required to be completed include community service hours, certain programs such as drug classes, domestic violence classes and theft classes, and fines and charitable contributions.

Defendants who are also police officers are not offered the program, but will be offered pleas that require them to give up their FDLE certifications or their licenses to be police officers. Because any plea with this condition will effectively end a police officers career, the majority of cases involving police officers go to trial. A lot also depends on the amount of evidence that exists against these defendants. Cases involving police officers are handled by the public corruption unit in the Miami-Dade County State Attorneys Office. While a specialized unit handles the prosecution, the cases, like all others are blind-filed or randomly assigned to one of the 20 criminal circuit judges sitting on the bench.

The officers like all defendants will have an arraignment date scheduled 21 days from the date of the arrest. During that 21 day period, an assistant state attorney will review the reports and talk to witnesses to determine if there is enough evidence to proceed with the case. If the prosecutor does not have enough evidence to file the case, he or she will no action the case and it ends there. If there is enough evidence to proceed, the prosecutor will file the charges and the case will be set for trial. Just because a case is filed does not mean all hope is lost. The defense lawyer handling the case will be permitted to engage in discovery and depose the majority of the state witnesses. Many cases become more defensible as the discovery process proceeds. The discovery process can provide defense counsel with the ammunition needed to file pre-trial motions such as motions to suppress and dismiss. Another plus is that the cases may get so weak that the state can seek to resolve in ways that avoid a plea and a trial. That is why any one arrested must find experienced counsel to represent them in criminal proceedings.

Two More Golden Beach Cops Arrested, Miami Herald.com, April 12, 2011.

April 11, 2011

Defendant Enters Guilty Plea in Federal Medicare Fraud Case

A South Florida woman entered a guilty plea in the Southern District of Florida for her involvement in the largest Medicare fraud case in the nations's history. Margarita Acevedo appeared with her Miami criminal defense attorney in federal court. She is facing between 12 and 15 years in prison for her role in the $200 million healthcare fraud. The indictment alleges that Ascevedo recruited senior citizens with mental health issues residing at assisted living facilities (ALF's) and halfway houses. The proprietors of these establishments would send hundreds if not thousands of patients to seven mental healthcare facilities operating under the name of American Therapeutic.

Acevedo was one of 24 individuals indicted for their involvement in the multi-million Medicare fraud scheme. She and the other defendants are facing long prison sentences. The lengthy prison sentences are not attributable to the crime itself, but the federal sentencing guidelines take into account the amount of loss to the victim when calculating a sentence. Medicare fraud along with other offenses such as larceny, forgery or theft start at a base level offense at 7. Levels will be added depending on the amount of the loss to the government, financial institution, or individual. Other level increases exist depending on the actions of the defendant and the type of victim involved in the case. Anyone interested in looking at the guidelines for these types of offense should check section 2B1.1 in the sentencing guidelines.

Despite the lengthy sentence Acevedo is facing on paper under the federal sentencing guidelines, she will likely on serve a third or even a half of the time she was facing as a result of her cooperation with federal prosecutors and law enforcement investigators. The government will expect many things from her in order for her to receive a significant sentence reduction. First, she will be required to speak with law enforcement and describe in detail the inner workings of the operation. She will also be required to point the finger at the owners and operators of the clinics who provided the fraudulent treatment. She will be required to lay out for the government which individuals at the ALF's and halfway houses were referring over patients and receiving kickbacks. Finally, she may be required to testify against any and all of these individuals at trial.

Acevedo and other individuals at American Therapeutic recruited the living facilities to send patients in exchange for kickbacks. Personnel at the facility would receive $30 for every patient referred over to the clinics. As usual, Medicare did not discover the fraud despite the unusually high number of claims being filed by American Therapeutic. The fraud was only discovered after clinic employees complained that the patients being sent over were beyond help. The owners of the clinics have also been charged and relayed their intent to plead guilty once the amount of loss has been fairly calculated. As stated earlier, the amount of loss is critical in determining the amount of time someone is facing for fraud related charges in federal court.

First Miami Defendant in Nation's Biggest Health Fraud Case Pleads Guilty, Miami Herald.com, April 8, 2011.

April 5, 2011

Tourists Beware

South Florida has always been a hotspot for both tourists and vacationers. Often times visitors get more from the vacation they envisioned. For example, drinking and partying on South Beach in Miami, Florida recently led several people to be manhandled and arrested by the police. Over the years, the records are replete with tourists being arrested for charges including drunk and disorderly intoxication, assault, battery, resisting an officer with violence and battery on a law enforcement officer. While the charges and levels of criminal offense vary, non-locals arrested in Miami-Dade County and in particular, Miami-Beach, should seek an experienced Miami criminal defense lawyer to fight the charges. While it may seem an easier path to accept a plea bargain as a matter of convenience, this result can often have unforeseen circumstances such as loss of employment or immigration problems down the road.

In the most recent case, a female tourist was ejected out of a show for disorderly conduct. Security staff pointed out the lady to Miami Beach police officers who eventually had enough and threw her to the sand. Another man came to her aid and became involved in a scuffle with the security staff as well. The officers shot pepper spray in the female's face. According to police reports , the man struck an officer in the head with a weapon causing the officer to go to the hospital for stitches. The woman was charged with disorderly conduct and resisting an officer without violence. The man who intervened in an attempt to assist the women was charged with aggravated battery on a law enforcement officer and resisting an officer with violence.

If you are from out of town and are arrested in Miami-Dade County, there are several things you must remember. First and foremost, have friends or family post your bond. You can wait until your bond hearing, but the judge will not give you pre-trial release because you are from out of town and inevitably you will have to post the bond. Have your friends or family contact a bondsman. There are hundreds of bondsman roaming South Florida. Normally, a bondsman will require you to pay 10% of bond to secure a person's release. For example, you will be required to pay the bondsman $1,000 on a $10,000 bond. However, a bondsman may require additional collateral because the person is not a resident of the county. After securing your release, look for a qualified criminal attorney to represent you. You can hire a lawyer in person or by telephone depending on when you are scheduled to depart the area. Before hiring a lawyer, do some research and request a consultation so that you are comfortable with the person representing you. Your case will be scheduled for an arraignment. You will not be required to attend this hearing as long as you are represented by counsel.

Most out-of-towners are first-time offenders and can generally avail themselves of the pre-trial diversion program (PTI). In exchange for completing certain conditions, the state will nolle pros or dismiss your charges. The program is available for misdemeanor and less serious felony charges. Charges such as aggravated assault and aggravated battery will probably not allow for the program, at least in the preliminary stages of the case. PTI is voluntary and does not have to be accepted by a defendant. In many instances, based on the facts and circumstances, a case should be vigorously defended as a matter of principal as many defense man exist to beat the charges and the case. Qualified defense counsel will review the discovery including police reports and in most instances have the right to depose witnesses. Once a case is evaluated, it is easier to make a decision in how to proceed with the case.

Miami Beach Police Defend Actions in Videos Showing Confrontation, Orlando Sentinal.com, March 30, 2011.